Discriminations

There was a time, in the early dawn of blog history, when I found myself spending so much time responding to the argument that racial preferences were O.K. because other kinds of preferences (legacies, athletes, tobacco farmers, etc.) were O.K. that I coined a term to refer to that argument: Invidious Ubiquitous Non-Sequitur, or IUNS. I even applied that as a tag to many of those posts (see the tags in the column to the right).

For example, in one of the first of these posts, nearly five years ago, I quoted from a book review in the New York Times —

Supporters of affirmative action cogently point out that ... “affirmative action” for athletes (as well as for alumni children) has never, at least until now, elicited cries of foul on the ground that it violates meritocratic principles. Somehow that kind of indignation seems to arise only in response to the putative advantages of minority candidates

— and commented:

or some reason, every time this point is made — and it is made in virtually every defense of racial preferences — it is always made with a sort of breathless sense of discovery, as though the author had just come up with an unanswerable “gotcha!” that will drive the final nail into the coffin of racist or redneck or Republican (but, from a liberal point of view, I repeat myself) objections to affirmative action.

I referred to this view as “The Fallacy of Fungible Discriminations”:

This is the argument that all discrimination is alike; if you can discriminate for one reason, you can discriminate for any reason. Thus if it’s acceptable to give preferences based on athletic or musical ability or the alumni status of parents, it’s also legitimate to give preferences based on race or religion. Preferences, in short, are preferences; if one is O.K., all are O.K.

I repeat all this here because, alas, the IUNS continue to come as fast and furious now as they did five years ago. Here’s a perfectly good example from the student paper at Middlebury College today:

So why affirmative action? Let us take this term to mean specifically preferential treatment in admissions for non-whites. In the firstplace, there are non-racial categories who receive preferential treatment in Middlebury admissions without having a snappy name for it: males, international students, talented athletes, women interested in math and physics, people from certain states and a number of other groups. This is all in the interest of diversity; the debate only arises, as it often does in America, when the preference is racial.

Well, yes. Complaints of discrimination based on race or ethnicity arise only where the discrimination is based on race or ethnicity.

Those who favor race preferences should also support amending the Constitution and civil rights laws to get rid of those pesky requirements for “equal protection” and prohibitions against discriminating against “any person” on the basis of race, etc.

Posted by John Rosenberg at 10:07 AM | Permalink | Say What? (2) | TrackBacks (0)

From a student letter in the Michigan State News:

First of all, admissions policies take many things into account and with the passing of Michigan Civil Rights Initiative, or MCRI, only race and gender will be eliminated.

Universities, such as the University of Michigan, will still be able to consider geography.

Well, yes. It’s true. Civil rights legislation bars only discrimination based on race, ethnicity, gender. If that’s somehow bad, then this writer should not only oppose MCRI but also demand the repeal of the 1964 Civil Rights Act, and probably the 13th, 14th, and 15th Amendments as well.

Just one more example (search "IUNS" – Invidious Ubiquitous Non-Sequitur — for others) of someone who thinks that if you can discriminate on the basis of anything, you should be free to discriminate on the basis of everything.

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A year or so ago I found myself attempting to swat down so many attempts to argue that discrimination on the basis of race or religions was no different from discrimination on any other basis -- residency, musical talent, athletic ability, legacy status -- that I gave this argument a name, IUNS (for Invidious Ubiquitous Non-Sequitur). You can actually search on that term here.

Really, the idea that all discrimination is fungible -- equally good or equally bad -- is ridiculous, or worse, as is accompanying argument that anyone who opposes racial discrimination who does not also oppose, say, preferences to athletes or musicians is a hypocrite. That might be true for someone who argues that academic merit should be the only criterion used for college admissions, but most thoughtful anti-preferentialists do not make that argument. All they, we, say is that colleges should be free to use whatever admissions criterial they want -- except race, religion, ethnicity.

Now the Chronicle of Higher Education is trying to stir up this debate again. First in an article, and next in a "Colloquy" that begins Thursday, which looks at the practice (oh horrors) that many colleges give preferences to the children of professors.

In the description of the upcoming Colloquy, it asks:

Should critics of race-based affirmative action and "legacy" preferences be just as outraged by employee-based affirmative action? If not, why not?

Briefly, No. Somewhat less briefly, the Chronicle's question notwithstanding, race-based preferences are not at all the same as legacy preferences. Nothing in the text, structure, or history of the 14th Amendment, or indeed nothing anywhere in our entire history, suggests any right to be free from discrimination based on where your parents went, or did not go, to college. Nor should it. Ditto for whether or not your parents are professors.

Now as a matter of policy one can quite reasonably oppose legacy/offspring preferences, but to speak of them in the same breath as racial discrimination trivializes the latter.

If racial discrimination really should not be distinguished from any other imaginable form of discrimination, then lets move quickly to abolish all our civil rights laws. For if it is really so trivial, who needs them?

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In �Williamsburg�s Village Idiot,� posted on New Year�s Eve eve, I discussed the sophomoric, over-the-top response of Timothy Sullivan, the president of William & Mary,� to an affirmative action bake sale on campus sponsored by student critics of racial preferences. (He responded, unoriginally, to a Charlottesville minister who criticized his action by replying that �[s]ome fool has sent me an email and signed your name to it.�)

Those sales, as everyone must know by now, have been held on a large number of campuses across the nation; by selling cookies for different prices based on the race or ethnicity of the purchaser, they are a pointed way of pointing out what many of us regard as the fundamental unfairness or preferences based on race.

When the student sponsors were attacked, the William & Mary administration did the predictable thing: it closed it down, and threatened the victims with disciplinary action. A strong letter from the Foundation for Individual Rights in Education seems to worked, however. So far as I know the bake salers were not in fact punished, and now, out of the strong commitment of President Sullivan to the principles of free speech at Jefferson�s alma mater, the bake salers have even been given a permit to hold another sale.

But not without further word from President Sullivan, who issued a press release elaborating his views on the matter. They are not pretty. After acknowledging, in what struck me as a belligerent tone, that �the right to freedom of expression belongs to every member of this community,� Sullivan went on to say:

What I find personally offensive is the manner in which they have chosen to express their views. The "bake sale" with racially differentiated prices that they hold today is inexcusably hurtful to members of this community whose presence here is welcome and critically important to the quality of our life together. Those who have chosen this abusive method of self-expression will have not a few occasions in later life to look back with regret on what they have done.

I believe Sullivan�s agitation shows how effective these bake sales are in forcing people to think about the wisdom of treating people differently because of their race. Not that Sullivan himself seems to have thought much about it; if he had, he might explained why it is �inexcusably hurtful� to sell cookies for different prices to buyers of different races but it is perfectly fine but to judge applicants to William & Mary by different standards based on their race. I suspect most readers of his statement will wonder about that as well.

That�s not all Sullivan said, or didn�t say. I found his next sentence also disappointingly revealing:

The wealth of skills, talents, backgrounds, races and interests our students bring to campus is itself an important element in our learning environment.

It is of course true that students bring their race to school with them along with other skills and talents. But to imply that race is merely one among many skills, talents, and interests is to say that it�s nothing special, that there is no reason to wall it off from discriminatory treatment. In other words, it is to commit the IUNS (Invidious Ubiquitous Non-Sequitur) fallacy so often discussed here of assuming that if discrimination on any basis is acceptable, then discrimination on every other basis must be equally acceptable.

It is equally true, as I�ve also argued here many times, that students bring their religion with them as well. If it is legitimate to engineer an appealing racial mix, why not do the same with religion? Famous alum, and later President, Jefferson might not get himself worked up over President Sullivan�s lack of respect for the principle of racial non-discrimination, but I suspect he would posthumously burn his William & Mary diploma if his college treated religion according to the same principle (or lack of it) underlying its treatment of race.

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In a recent generous and polite email, reader Ray Crites gently takes me to task for not emphasizing, or even mentioning, the 14th Amendment in my recent Invidious Ubiquitous Non-Sequitur (IUNS) post discussing why discrimination based on race is not the same as discrimination based on legacy status or athletic or musical ability.

In the hope (based perhaps more on vanity than good analysis of my readers' interests) that others may be interested in my response to Ray, I include it here:

I completely agree with what you're saying, which means that I should have included the constitututional argument, and prominently. The only reason I didn't in the post to which you responded is that I've mentioned it so many times in earlier "IUNS" posts that I made the mistake of taking it for granted. If I had thought about it, I of course would not have assumed that all current readers had read, much less remembered, all my earlier posts. Thus I will post something shortly acknowledging your point.... [NOTE: This is it.]

Now, some additional points:

I recently added an "Update" pointing to a Jeff Jacoby column in the Boston Globe making the same argument that you would find of interest. He does mention the 14th Amend. argument.

I hope that all my comments on this issue, especially if read in conjunction with what I've said in other posts about "race and sects" (that there should be a wall of separation between race and state for the same reasons there is between religion and state, etc.), make the point that even more fundamental (I believe) than the Constitutional bar against race discrimination is the underlying reason why that bar is in the Constitution. Don't misunderstand (or rather, let me be clear, since I wasn't before): I believe law and the Constitution are of crucial importance. I believe in text, and following the law. If something is illegal or unconstitutional it shouldn't be done even if it is not evil, wrong, etc. However, I also believe in something like a distinction between a capital "C" Constitution and a lower case constitution, and that the latter underlies the former. That is, religion and race are fundamental components of the very structure of our society; they are at the core of its (lower case) constitution. That is fundamentally why the state must not play favorites in those areas; otherwise we would have constant civil war. And that, I believe, is why the bar against discrimination finds itself in the upper case Constitution. Thus in my view the strongest argument against preferences is not simply that they are barred by the text, but also why they are barred by the text. It's the "why" that elevates the principle that everyone should be judged without regard to race, creed, national origin to a core value of our society.

Finally, fyi, here is a reasonably complete list of my posts that have discussed the "IUNS" matter; I havent' reread them all, but I think most probably mention the Constitution:

http://www.discriminations.us/archives/000007.html

http://www.discriminations.us/archives/000013.html

www.discriminations.us/archives/000308.html

http://www.discriminations.us/archives/000319.html

http://www.discriminations.us/archives/000465.html

http://www.discriminations.us/archives/000468.html

http://www.discriminations.us/archives/000499.html

http://www.discriminations.us/storage/001908.html

And here are a couple of the "race and sects" arguments that complement the above:

http://www.discriminations.us/archives/000131.html

http://www.discriminations.us/archives/000129.html

Best wishes,

John Rosenberg

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Long-time readers of this blog, if there are any, in addition to having a high tolerance for pain, will be familiar with my recurring criticism of what I've termed (with Joanne Jacobs' assistance) the inividious, ubiquitous non-sequitur (IUNS), namely, the view that if any kind of discrimination is legitimate, all kinds must be legitimate. Because of my fixation on these matters, I see this argument several times a day. "Why do you complain against racial preferences," the familiar refrain goes, "when you don't have the same complaint against preferences for place kickers or piccolo players?"

Well, because racial discrimination is wrong and evil and those other forms of discrimination, although perhaps bad policy, aren't.

Not surprisingly, if you lower the barriers against discrimination and replace the stigma against it with positive encouragement, you tend to get more of it. Thus one of the most pervasive but little-noticed practices of what its defenders would view as progressive, enlightened discrimination is admission preferences for ... males. Men, it seems, are increasingly "underrepresented" in many colleges, and thus it is easier for them to get in.

This trendy discrimination has not been totally ignored (see, for example, "Admissions Officers Walk a Fine Line in Gender-Balancing Act," Christian Science Monitor, May 22, 2001), but it is safe to say that not much public controversy has been heard. The National Organization for Women, for example, has been as silent about this as it was about the behavior of the former sex harasser in chief. Now USA Today has an editorial on the subject. (Link via Erin O'Connor)

USA Today's purpose, however, is not to lament the discrimination against women college applicants. It is to worry and whine that if the Supremes bar racial preferences then -- heaven forbid! -- gender preferences may have to be abandoned as well. (Of course, they may be wrong about this. Racial and gender discrimination are not on precisely the same legal and constitutional foundation, but that's another story.)

Here's how USA Today makes the tiresome IUNS argument:

If colleges lose the flexibility to consider [race], they would face an awkward dilemma. They would be free to continue adjusting their admissions standards to accept star athletes, gifted musicians and children of alumni or generous donors. But they would lose the latitude to make admissions decisions that guarantee a rich mixture of students that improves the education process, enhances campus life and better prepares students for today's diverse society.

Nothing new there. Distributing benefits and burdens based on race is no different from rewarding or not rewarding based on musical or athletic ability, etc. But the editors do add one twist to the basic IUNS that is noteworthy: the false dichotomy variation:

When courts strike down minority-preference programs, they deny colleges an effective way to ensure that their students reflect the diversity of the taxpayers who fund the schools. They also send the troubling message that only objective measures, such as grades and standardized test scores, are legally acceptable admissions criteria.

Among the many things that could be said about this attempt to warn of dire consequences, perhaps the most important is that it simply isn't true. Telling colleges they may no longer give preferences based on race in no way prevents them from discriminating on virtually all other criteria (as the editorial elsewhere recognizes), and it certainly does not limit them to grades and test scores. They could admit randomly, or by geography, or by intended major, or whatever. All the ban on racial discrimination would require is that whatever standards are employed be applied without regard to race. It hasn't been long since such a policy would have been regarded as reflecting one of our core values.

The editorial, however, does break some important new ground. What is new is the almost humorous attempt to sweep every kind of preference under the rug of "diversity."

In fact, colleges routinely manipulate their admissions criteria to attract the students they believe will create the best mix. That's why talented athletes often have lower average grades and test scores than their classmates, and why children of alumni and generous donors get favored treatment.

Does USA Today really believe that athletes and legacies are given preferences to promote "diversity"? I don't think so. It's more likely that they didn't think at all, blindly accepting the notion popular in elite circles these days that the need for "diversity" trumps all other values.

But their argument does have one great virtue: it's unique. I've never seen it anywhere else, and so I hereby award it the prestigious DISCRIMINATIONS award for originality: a free subscription to this blog.

UPDATE - Jeff Jacoby of the Boston Globe agrees (although he doesn't know he's agreeing with me).

Posted by John Rosenberg at 10:44 AM | Permalink | Say What? (1) | TrackBacks (0)

In his "Editorial Observer" column in the New York Times on March 31 that I didn't get around to blogging until now (there were too many other items of substance to be attended to first), Adam Cohen argues, if that's the right term, that race preferences should be upheld out of regard for "the minority applicants whose own dreams will be crushed if the court rules for Ms. Gratz and Ms. Grutter."

Well, that's not completely fair. Cohen does offer one additional argument: that the Center for Individual Rights is a villain.

The Center for Individual Rights presents itself as on the cutting edge of civil rights. It claims to be seeking Martin Luther King Jr.'s dream of a society that judges people "not by the color of their skin but by the content of their character." It is the university and civil rights groups, the center says in its legal brief, that are insisting "not only that `race matters,' but also that race should matter."
[....]
The Center for Individual Rights is not really seeking "equal treatment" at all. If it were, it would fight all the plus-factors Michigan uses � including those, like alumni preferences and provost's discretion, that help wealthy whites. But it has chosen only to go after students at schools like Cass Tech, to try to take away one of the few things they have on their side.

Here's the old Iniquitous Ubiquitous Non-Sequitur again: you can't sincerely believe that the Constitution and the Civil Rights Act of 1964 both do and should prohibit discrimination based on race unless you also believe they prohibit discrimination on the basis of geography or the alumni status of parents.

I continue to find it curious that people who see themselves as the most adamant and principled defenders of civil rights have latched onto an argument that so trivializies racial discrimination.

UPDATE - Kimberly Swygert of Number 2 Pencil has more to say about this inane article, and she says it quite well.

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The New York Times "Week in Review" published some quotes from a few of the briefs filed in the Michigan cases. Among the more interesting were the quotes from the brief filed by the American Jewish Committee, which supported Alan Bakke in his suit against the University of California but opposes the plaintiffs in the Michigan cases. I was particularly struck by the following comment from the AJC brief:

It would indeed be ironic if, with all the factors that universities take into account to assure diversity or otherwise serve the university's pedagogical and institutional interests � including geography, sports capability, socioeconomic or legacy status � that the only factors that may not be taken into account are those associated with populations that have been historically underrepresented on our campuses.

It would be more than ironic if that were the case, but, as the AJC well knows (if it doesn't, everyone there is being paid too much), that isn't the case. Religion also "may not be taken into account."

Does the AJC want to change that? If not, why does it believe religion should be a "suspect category" but not race? Does it believe "geography, sports capability, socioeconomic status or legacy status" should be "suspect categories," or that race and religion should not be? That is, should it be as easy to justify discriminating on the basis of race and religion as on sports capability? If so, why is the American Jewish Committee needed? What rights does it see itself protecting?

Anyone wanting to read the whole nine yards can find the AJC brief here.

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The Triangle, the student newspaper at Drexel University, defends diversity and argues that

allowing race as a factor is a necessary means. As long as universities allow alumni and large donations to dictate who gains admittance, both practices that benefit primarily white students, it�s justifiable to offset such "preferences" with countermeasures.

As with all such IUNS, the student editorialist here in effect argues that there is no difference between racial preference and preference on any other grounds. If this logic is accepted, then race, and quickly religion, will no longer be "suspect categories" requiring "strict scrutiny" to determine if a "compelling" interest is served by racial discrimination. Discriminating on the basis of race will thus become a policy option requiring no greater concern than benefits or burdens distributed for any other reasons. This is not progress.

What will such a future look like? Who knows. Is the following a) likely, b) out of the question, c) ridiculous, d) all the above?

Assume that minorities are "underrepresented" among buyers of BMWs and vacation homes. In order to encourage the more equitable distribution of such luxuries, should minorities be charged a lower sales tax on BMWs and receive a larger tax deduction on vacation homes than whites and Asians? Would such tax preferences be unfair, or is refusing to extend them unfair?

If this scenario seems far-fetched, consider the "affirmative action bake sales" that, as Joanne Jacobs noted recently, have sparked controversy on several campuses. (In the AA sales, whites, men, Asians, are charged more for the same cookie than are blacks, women, Hispanics.) Here's a response to a proposed AA sale at Stanford that appeared in the Stanford Daily today by a doctoral candidate in English:

College Republicans� bake sale needs to �improve its accuracy�

The Stanford College Republicans� proposed Affirmative Action Bake Sale, reported in �Affirmative action opponents make their point one cookie at a time� (Feb. 20), would charge white men and Asian Americans $2 for a cookie while charging less to white women and members of other minority groups. The goal is to show that affirmative action is �absurd� and �un-American.� It�s a clever stunt. But I have one suggestion that might improve its accuracy.Before selling the cookies at their proposed prices, the Stanford Republicans should give their customers money with which to buy the cookies: $2 to white men, $1.50 to Asian Americans, $1.25 to black and Latino men, $1 to white women, 80 cents to Latina women, and 50 cents to Native Americans. This wages [sic] reflect the relative levels of income among these groups in the United States today, and demonstrates [sic] the kinds of continuing inequities that affirmative action is meant to reduce. Perhaps what�s �un-American� is not affirmative action, but a society in which women and minorities still earn far less than white men do.

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SLATE has an article on the Michigan cases, "Colorblind in One Eye: The Selective Colorblindness of the Bush Approach to Affirmative Action," that I found more shrill, patronizing, and polemical -- but at the same time less interesting -- than most of what appears there. It wasn't until I read all the way to end that I discovered its author, Elise Boddie, is a counsel with the NAACP Legal Defense & Educational Fund, which is representing African-American and Latino students in the Michigan cases. Well, no wonder it read like a legal brief (and not a very good one). But, hey, SLATE doesn't pretend to be fair and balanced....

Below I will examine Ms. Boddie's main arguments, but before turning to them I think it worth noting something odd about the article as a whole: here is a counsel in the most important affirmative action case since Bakke who uses her SLATE-provided platform not to make a case for her clients or for racial preferences in general but to engage in an argument with "the Bush approach to affirmative action." It's as though scoring political points is more important than making the strongest pitch for her side in the case. I guess these people, like the Europeans, hate Bush so much they just can't resist.

So, what does she say? Here we go. From here on she'll be in italics.

[After announcing his administration's intention to oppose Michigan's admissions policies], Bush took to the airwaves — on Martin Luther King Jr.'s birthday, no less — to condemn the University of Michigan's modest consideration of race in fostering diversity on the still-overwhelmingly white Michigan campus.

It is a measure of how far the NAACP/LDF has come (or gone) that it finds something especially grating -- "no less," indeed! -- that an American president would make a speech opposing racial discrimination on Martin Luther King, Jr.'s, birthday.

What I find interesting about her claim that Michigan's consideration of race in the application process is "modest" is not so much that it's wrong -- more on that in a moment -- but that Ms. Boddie must recognize that most people would be offended if the use of race were described accurately -- for example, as "an enormously important factor," which is what U.S. District Court Judge Friedman concluded after a bench trial of Barbara Grutter's complaint against the law school. (Grutter v. Bollinger, 137 F. Supp.2d 821, 841 (E.D. Mich. 2001, cited here, p. 2).

Judge Friedman isn't the only one to have found that Michigan's thumb on the racial scale has been extraordinarily heavy. Linda Chavez's Center for Equal Opportunity studied the influence of race in admissions in 47 colleges and universities around the country. (Those findings are presented in a report, PERVASIVE PREFERENCES, which can be found here.) At Michigan, as Ms. Chavez wrote in an OpEd last month,

we discovered that the median SAT scores for black students who were admitted to the school were 230 points lower than for whites. What's more, their high school grades lagged nearly a half point (on a four-point scale) behind those of whites. From the data we obtained under a Freedom of Information request, we calculated that the odds of being admitted if you were a black student with the same qualifications [grades and test scores] as a white applicant were 174-to-1.

"Modest" indeed.

But the deeper problem with Bush's approach isn't just that he opposes the consideration of race as a means to the end of racial diversity. It's that he is also selective about his colorblindness — calling for the elimination of the slightest disadvantage to whites, while at the same time ignoring entrenched and systemic disadvantage to African-Americans and other racial minorities. Bush's upside-down logic calls to mind the wise words of Justice Harry Blackmun who remarked, "In order to get beyond racism, we must first take account of race. There is no other way."

True, but there are other, better ways "to take account" of race than continuing to use it as a basis of rewards and punishment. Isn't that how minorities became disadvantaged in the first place? Bush may remind Boddie of Blackmun's comment, but using racial discrimination to get beyond racial discrimination reminds me of the now infamous quote from Vietnam about destroying the village in order to save it.

Bush's allegedly colorblind approach to affirmative action ... won't significantly affect the representation of whites on many campuses. At the most selective institutions, the elimination of affirmative action would have an acute impact on the admissions of African-Americans and Latinos but would likely increase the chances of white admissions by just 1.5 percent. In other words, although there is a widespread perception that masses of white students are losing their seats because of affirmative action, in reality, race-conscious policies have a negligible impact on whites. As a matter of basic math, affirmative action cannot begin to account for the number of unsuccessful white candidates, because the sum of minority students admitted under race-conscious policies is dramatically less than the number of white candidates denied admission.

This is one of several straw man (or person) arguments, since almost none of the criticism of racial preferences -- and certainly not Bush's -- is that it excludes masses of whites. The criticism is that racial discrimination is unfair to the individuals who suffer from it, and to the society that tolerates it. Ms. Boddie prides herself on not being colorblind, in either eye, but she has a particularly crippling kind of moral astigmatism that prevents her from seeing individuals at all. She can only see groups. Note well the following:

Yet opponents still equate affirmative action policies with "discrimination against whites" and draw audacious parallels between such policies and the racist practices of universities during the era of de jure segregation. The University of Michigan is at least 80 percent white, so it isn't credible to claim that it or its affirmative action policy discriminates against whites as a group.

I'm not aware of anyone who says that state-enforced racial preferences are as bad as state-enforced segregation, but never mind. What is truly "audacious" is the claim that discrimination against individuals doesn't count. Only discrimination against "groups" -- and even then, only if its impact is severe enough to be measured statistically -- is all that matters. Anyone who doubts that the preferentialist vision would undermine traditional anti-discrimination laws need look no further than Ms. Boddie's refreshingly frank exposition of the principle underlying preferentialism.

Further, while most of the public scrutiny concerning affirmative action has been on the qualifications of African-American and Latino students admitted to Michigan, it is scarcely mentioned that other white students are also admitted with SAT scores or GPAs lower than those of the plaintiffs (and lower than those of rejected minority applicants).

If true, this could be interesting. What are the numbers? It would be quite useful, and I suspect revealing, especially in light of the Center for Equal Opportunity's findings mentioned above, to see how many rejected minority applicants had grade/test scores higher than how many accepted white or Asian students.

UPDATE (2/1/2003) - An article appearing in the New York Times Week in Review on Feb. 2 revealed that, in assembling its class for the fall of 1999, the Michigan law school

accepted only one of the 61 Asian-Americans, or 2 percent, who were ranked in the middle range of the applicant pool, as defined by their grades and test scores, according to court filings. The admission rate for whites with similar grades and scores was 3 percent.

But among black applicants with similar transcripts, 22 out of 27, or 81 percent, were offered admission.

Nor is much attention paid to the other racialized dimensions of Michigan's admissions policy that favor whites. The preference given to the children of alumni (including, incidentally, Patrick Hamacher, one of the plaintiffs challenging Michigan) disproportionately benefits whites, as does the enhancement given for candidates from Michigan's predominantly white Upper Peninsula, and the points awarded based on the quality of the candidate's high school and curriculum.

You knew it had to come sooner or later, and here it is: the inevitable Invidious Ubiquitous Non Sequitur. A policy that "disproportionately benefits whites," such as legacy preferences or preferences to residents of the "predominantly white" Upper Peninsula, is now "racialized" and presumably discriminatory. But one that overtly gives preferences to minorities, that benefits minorities only and not disproportionately, is not discriminatory. (Hello! Orwell, are you watching this?) The underlying "principle"? If any kind of discrimination is acceptable, racial discrimination is acceptable.

Opponents of affirmative action have spent the past two weeks repeating what seems to be their main, patronizing argument: that race-neutral admissions are better for racial minorities because affirmative action stigmatizes its beneficiaries as inferior (while at the same time denying their own agency in perpetuating such stereotypes). But the "stigma" is one-sided. It isn't applied to legacy admits; and it isn't applied to white Anglo Saxon Protestant men admitted to universities before the 1970s. Until affirmative action kicked in, these groups had a virtual lock on admissions at selective institutions because white women, blacks, Asians, and Latinos were either excluded from selective institutions altogether or were admitted in token numbers. Yet one never hears that this de facto affirmative action has "stigmatized" white males.

Again, this simply isn't true. At most elite campuses legacies are widely recognized as having been admitted under lower standards than everyone else (except preferentially admitted minorities).

The tragic irony is that the 14th Amendment, the basis of the Michigan lawsuit, was conceived to rectify the enormous burdens of African-Americans who had just emerged from slavery. Now it has been twisted into a weapon against policies that have modestly uplifted blacks and other racial minorities. The Supreme Court's jurisprudence no longer recognizes the difference between policies that benefit and those that harm historically oppressed groups.

Here we go again with groups. Insofar as the above is true, it's because the principle embodied in the 14th Amendment is that the entire society, including especially "oppressed groups," benefit when "no person" can be discriminated against because of race. I don't think there can be any dispute about that, or about the fact that the Supreme Court has consistently held that the anti-discrimination principle applies to everyone, not simply the group whose oppression gave rise to the 14th Amendment. Ms. Boddie obviously wishes that weren't so, but wishing doesn't make it so.

It is unfortunate that so much energy has been spent trying to eradicate programs that seek to bridge the abyss between this country's promise of opportunity and the depressing reality that we still live in a society in which one's life chances, opportunities, and experiences are significantly shaped by race.

What exactly is "this country's promise of opportunity"? I believe it is the promise that every person will have an equal opportunity "without regard to race, creed, color, or national origin," as stated in the executive orders on affirmative action issued by both President Kennedy and President Johnson.

Ms. Boddie and the NAACP/LDF quite obviously believe something else.

Posted by John Rosenberg at 10:12 AM | Permalink | Say What? (2) | TrackBacks (1)

It's clear that Peter Beinart of The New Republic is not reading this blog (or at least not learning its lessons), for he has now made a major contribution to the literature of the Invidious Ubiquitous Non Sequitur. But Beinart is a good writer and TNR is a serious and thoughtful journal, and so he has done so with a flair and a twist.

"The next time you hear a Republican denouncing racial preferences at the University of Michigan," Beinart advises, "test his or her moral consistency with three simple questions." "Moral consistency." That's nice. I will list Beinart's questions, then quote and discuss his comments about them.

Have you denounced other identity-based preferences in college admissions?

Here we go.

Republicans make a big deal of the fact that under Michigan's numerically based admissions system, black applicants get points just for being black. But students also get points for being from different regions of the country or even different parts of the state.

So, discriminating on the basis of race is no worse than discriminating on the basis of geography.

And here we go again.

And, if geographic preferences are as bad as racial preferences, surely parental preferences are worse.

The point is pure IUNS: if you're willing to discriminate on the basis of geography or legacy status, you're "morally inconsistent" if you're unwilling to discriminate on the basis of race. This is a very strange morality. But leaving morality aside, this position is inconsistent only if one regards "merit," i.e., grades and test scores, as the supreme, overriding value. But merit need not be the basis for criticizing preferences. One could simply entertain the increasingly quaint notion that racial and religious discrimination are, in our tradition, uniquely evil.

Do you believe in color-blindness across the board?
Here Beinart attempts (unsuccessfully in my view) to respond to the above criticism, but then he makes a good point, or at least an arguably good point.

Affirmative action opponents might distinguish racial preferences from geographic and parental ones by claiming that, given this country's terrible history, there is something especially toxic about classifying people by race. The problem with that retort is that Republicans and conservatives are perfectly willing to classify people by race when it serves policy goals they like.

Beinart points to Republican and conservative support, or alleged support, for racial profiling of black motorists and Muslim/Arab passengers as proof of inconsistency. I think there's a serious issue here worth pursuing -- this point is not, in short, off the wall, as I believe his first point was -- but I also think it's not quite the "Gotcha!" that Beinart believes. First, note that no advocate of colorblindness I know says race should never be taken into account. No one, for example, would insist on placing a red-headed Irish cop undercover in a black gang.

One defense of this "exception" is that it's not really an exception. The core principle of colorblindness, this defense would hold, is not blindness but neutrality: all races must be treated the same. This is the basis of the criticism that the Japanese internment was unfair not because ethnicity was taken as a proxy for potential disloyalty but because no Germans or Italians, equally risky, were interned. (I'm not comfortable with this myself, but there it is.) Thus, the argument would go, as long as we profile any and every group for which there is a reasonable profile (and the reasonable requirement would place the burden on the government to establish the claimed benefits of the profiling) for particular crimes, there is no discrimination involved. I think these are interesting points, but as I said I'm not completely comfortable with them myself. I agree with Beinart here to the extent that anyone defending any racial profiling has the very heavy burden of justifying it. I suspect this burden will lead to the very destination where the courts have arrived on racial classification: they can be justified only if they are compelling and narrowly tailored. I say "anyone" and "any racial profiling" here because, although Beinart doesn't mention it, preferentialists are clearly engaging in racial profiling when they assume skin color is a valid proxy for diversity-enhancing qualities, and then give preferences based on that assumption.

Have you denounced the affirmative action in your own party?
Here Beinart refers to the showcasing of minorities at Republican conventions, etc.

Since President Bush took office, Republican reverse discrimination has only intensified. Bush has appointed an African American secretary of education who had never held federal or even state office and a Hispanic secretary of housing and urban development who had never held office above the county level. (When Bush's first choice for secretary of labor bowed out, he selected another nonwhite woman: Can anyone say quota?) In the wake of Trent Lott's downfall, Republican National Chairman Marc Racicot earlier this month vowed to appoint more blacks to positions in the GOP. Given that politically experienced black Republicans are about as common as black college applicants with perfect SAT scores, Racicot has virtually pledged to discriminate against more qualified whites. What Bush and Racicot realize, of course, is that racial preferences can help Republicans appeal to black, and even some white, voters. But, if affirmative action is justified when it helps the political fortunes of the GOP, why isn't it justified when it helps create a racially diverse college campus?

Beinart calls these examples "as flagrant an expression of racial preferences as anything taking place in Ann Arbor." I believe this reflects excessive exuberance, but let's forgive it and let Beinart enjoy a good, if relatively minor, clean hit on a Republican vulnerability. At least he didn't mention Rice and Powell as examples. It is debatable whether appointing someone to a high party or government office (cabinet member, etc.) on the basis of race violates any "right" or not, but it is not debatable that it violates the colorblind principle. And there's a very good word to describe this sort of behavior by politicians: pandering. And I agree that pandering is worse coming from Republicans because when they do it they hypocritically violate their stated principles. Democrats, having abandoned the principle that burdens and benefits should not be distributed on the basis of race, at least aren't hypocrites about it. Pandering is what they preach.

Indeed, taken as a whole, the point of Beinart's column is unclear. He says in conclusion that

Republicans aren't wrong to espouse merit and color-blindness. They're wrong to espouse merit and color-blindness while ignoring the ways in which they violate those principles themselves.

Note, by the way, that he must claim a devotion to "merit" to make his point, which I believe misses the point of the most fundamental criticisms of preferences. Nevertheless, when is all is said and done, what is Beinart saying. If Republicans "aren't wrong" to espouse colorblindness, are they right? He doesn't say. The main thrust of his criticism seems to be that they act like Democrats. And in those few places where this is true, that's damning enough.

Posted by John Rosenberg at 10:56 AM | Permalink | Say What? (3) | TrackBacks (0)

In my last post I complained about "the mistaken belief that a blind faith in "merit" provides the only basis for criticizing preferences."

Evidence of that misconception is almost as ubiquitous as the invidious non sequitur belief that if any discrimination is acceptable, all discrimination is acceptable. Another good example comes from a Martin Luther King day speech by Susan Gooden, dirctor of the Race and Social Policy Center at Virginia Tech.

"Exceptions" already occur, she pointed out, for children of influential alumni and exceptional athletes.

"The debate over preference is a valid one," she said, "but why does it just focus on racial exceptions. Why not all exceptions?"

"Exceptions" obviously means exceptions to reliance on merit alone, as though a commitment to merit provides the only basis to condemn racial preferences. As readers of this blog know, it doesn't.

I myself happen to like merit, but I think universities are perfectly free to compromise it as much as they'd like. They can discriminate on any basis they choose ... except race and religion.

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Lately I've been feeling a bit like Mickey Mouse in "The Sorcerer's Apprentice," furiously trying to bail out a boat that is being flooded with the bilge of moral equivalence/IUNS (invidious ubiquitous non sequitur) arguments that view racial discrimination as morally indistinguishable from any other kind of discrimination. You've memorized this bull by now as well as I have: how can you claim to oppose racial discrimination when you're perfectly happy to accept ballet or baseball scholarships or bonus points to Boise residents or whatever. Because of Bush, the favorite equivalence argument at the moment is that preferences for legacies are the same as preferences based on race. Alas, I fear I can't bail fast enough, and I can feel the intellectual muck rising from ankle to knee....

Now comes Michael Kinsley to dump his load into the mix (Link thanks to Stuart Buck).

They may not have had an explicit point system at Yale in 1964, but Bush clearly got in because of affirmative action. Affirmative action for the son and grandson of alumni. Affirmative action for a member of a politically influential family. Affirmative action for a boy from a fancy prep school. These forms of affirmative action still go on.

.... George W. Bush, in fact, may be the most spectacular affirmative-action success story of all time. Until 1994, when he was 48 years old and got elected Governor of Texas, his life was almost empty of accomplishments.

You could finish this article without reading the rest and without my telling you what it says. Inconsistent, hypocrite, etc.

So what is the difference between the kind of affirmative action that got Bush where he is today and the kind he wants the Supreme Court to outlaw? One difference is that the second kind is about race, and race is an especially toxic subject. Of course, George W.'s affirmative action is about race too, at least indirectly.

Heard this too. Willing to give preferences for everything under the sun except race, aren't you? We know what that makes W, don't we? Of course we're too polite to say, but you can figure it out: r*c**t.

I don't have time now to repeat everything that is wrong with this argument. You've heard it all from me already anyway. The most profound flaw is the assumption that all types of discrimination lie on the same moral plane. If you're willing to reward talent or privilege or geographical background, you can't consistently refuse to reward race or, logically, religion. I find this argument almost bizarre in its moral obtuseness.

Another flaw, related to the first and in some sense enabling it, is the mistaken belief that a blind faith in "merit" provides the only basis for criticizing preferences. If that were true, it would make some sense to accuse people of inconsistency if they were willing to compromise merit when it benefited them (for legacies, etc.) but not when it benefited blacks and Hispanics.

But the most penetrating and persuasive criticism of racial preferences has nothing whatsoever to do with a fealty to merit. It is that discrimination on the basis of race or religions violated the fundamental American principle that people should be judged "without regard" to those characteristics. Indeed, the preferentialists are probably more committed to merit than we colorblinders. They are the ones who are unwilling to sacrifice their devotion to high grades and test scores for admission to the "flagship" schools where so many of them are or were. If they would compromise those standards, as suggested in little appreciated passages of the administration briefs in Grutter and Gratz (not the Top X% alternatives, which is all that anyone discusses), they could achieve diversity without being forced to turn to racial discrimination.

This schoolyard "You're one, too!" refrain that legacy preference = racial preference is now so ubiquitous that I'm beginning to think there are operatives holed up somewhere in Preference Central writing everyone's script and distributing it through mailing list, fax, and mimeograph. Otherwise how could so many of the herd of independent mines come up with the exactly the same deeply, disturbingly flawed argument?

Posted by John Rosenberg at 10:12 PM | Permalink | Say What? (4) | TrackBacks (0)

Yep. Everywhere you look someone is jumping up and down with glee and shouting "Gotcha! Gotcha! Gotcha!" because he or she, unbeknownst to him or her but for the umpteen thousandth time this week alone, has just discovered that white people sometimes benefit from preferences!!! Can you believe it? All this hoopla about blacks receiving preferences when white folks have received them -- because their parents or grandparents attended the ole alma mater, or they play the oboe left handed, or whatever -- for years and years. Yes, people, the familiar Invidious Ubiquitous Non Sequitur -- all discrimination is of a piece; racial discrimination is no worse than a leg up to legacies -- has appeared yet again, today in a truly atrocious column in USA Today by Roland Martin, "editor of BlackAmericaWeb.com, news editor of Savoy magazine, and author of SPEAK BROTHER! A BLACK MAN'S VIEW OF AMERICA."

At least the article doesn't require extended comment since it says the same thing all IUNS do: legacies get preferences; Bush was a legacy and therefore "he benefited from a quota system.... That's right. Our own president is an affirmative action baby." Etc.

To be consistent, those who are against affirmative action should be against all preferences; they shouldn't wimp out by saying one is OK while another isn't.

Wrong. To be consistent, anyone who thinks racial preference is no different from legacy preference should propose repealing or amending the Civil Rights Act. It says nothing about legacies. Why should it?

The most telling and fundamental criticism of racial preference is not that it violates the merit principle. Merit is not a constitutional mandate. It is that it violates the principle that is at the core of the American creed, which is that distributing burdens or benefits based on race or religion is wrong.

UPDATE - One other point about this column. Consider the following from it:

Blacks weren't able to attend many of the nation's schools for more than half of the 20th century. As a result, a significant number of black students weren't able to write on their application that they were a "legacy" because a different legacy � that of racism and Jim Crow � didn't allow their parents and grandparents to have the same educational opportunities as their white counterparts. So if you or your grandparent graduated from the University of Texas, Georgia, Mississippi State, Florida or countless other schools, then you and your children are taking advantage of America's racist legacy.

And that is the inherent issue with affirmative action. Despite the denial of so many today, America cannot make up for its vile, humiliating and deadly racist past. But to level the playing field does mean taking into account the benefits individuals get in this society because they are white.

Now, let's grant the argument in the first paragraph above, even though many current Americans who are not given preferences arrived here too late to take much, if any, advantage. But even letting that go, I somehow doubt that shouting about all whites benefiting from America's "vile, humiliating, and deadly racist past" is the best way to persuade them to (from this point of view) penalize themselves and reward others, many of whom are not victims.

Posted by John Rosenberg at 5:22 PM | Permalink | Say What? (1) | TrackBacks (0)

Regular readers know that I have ranted long and hard about the invidious ubiquitous non sequitur of regarding racial discrimination as no better or no worse than discrimination over athletic or musical ability or where your parents went to college. (If you want, see here, here, here, here, here, here, and here.)

Now Howard Kurtz of the Washington Post steps forward to reveal that he hasn't learned my lesson:

Of course, the folks who seem most upset by affirmative action don't seem terribly concerned about preferential treatment for children of alumni -- how do you think Dubya got into Yale? -- not to mention star quarterbacks.

Well, of course they're not. Nor should they be. Star quarterbacks? The best put-down of this silly argument I've seen is from the eminent social scientist James Q. Wilson, who wrote that over the years the courts have walled off racial classifications as a "suspect category."

In taking this approach, the Court has given practical effect to what somebody said on another occasion: we did not fight the Civil War to make sure the University of Mississippi would admit good quarterbacks, we fought it to make certain it would admit blacks. To say that racial and athletic classifications are similar or that one can reason from the latter to the former is foolish. No court has ever held, or is likely to hold, that being able to throw a football 60 yards (or to have a father who gave the school a million dollars) places you in a class whose rights are protected by the barrier of strict scrutiny. Of course, one could argue for making both race and athleticism the same, by getting the Court to say that race is no longer a suspect classification. But that would mean reversing 40 years of desegregation. [COMMENTARY, March 1998; also quoted in the first IUNS link above]

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Reader Gus Mahler sends a reference to an example of an IUNS (Invidious Ubiquitous Non Sequitur) in a Frank Deford SI article.

It is generally accepted that when it comes to affirmative action in college admission, the group that receives the most favored treatment is the children of faculty. Then comes athletes. Then legacies -- children of alumni. Then minorities. Oh, it may not be in exactly that order at all colleges, but that seems to be the pattern. Athletes, however, probably profit most overall, not only because they are given special admissions preference, but because so many of them also receive scholarships -- even if their parents can afford full tuition.

This is worth our being reminded, because, of course, the Supreme Court has agreed to review the 1978 Bakke decision, which upheld the right of universities to consider race as a factor in making admissions decisions.

Let us, then, jump ahead to next June when the new decision may be handed down. If the high court rules that applicants are discriminated against because of race, could we not expect someone to contest the similar favoritism that is applied to athletes at state universities? Why should an A student with high SAT scores be denied admission when a football player with low class standing and abysmal SATs is accepted? Is this not unfair? Is this not the stuff of a civil suit?

Unfair? Perhaps. Bad academic policy? Probably. On the same moral plane as discriminating on the basis of race? No way.

The IUNS assumes that an absolute devotion to merit provides the only basis for criticizing race preferences. If one is willing to compromise merit to provide preferences for athletes or legacies, so the argument goes, then one can't consistently oppose preferences based on race. So far as it goes that's true, but it doesn't answer the much more fundamental criticism of race preferences, which has nothing necessarily to do with merit. That criticism recognizes that all sorts of discrimination are acceptable in our society, but a few -- race, religion, and increasingly gender -- are not, and should not be.

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When last heard from here, syndicated columnist Leonard Pitts, Jr., was busy making the IUNS (Iniquitous Ubiquitous Non Sequitur) that white students are not "materially harmed" by race preferences and that we wouldn't "even be having this conversation if the students who got in ahead of the plaintiffs had done so one the basis of, say, life experience or athletic ability." Race, oboe playing, down field running -- doesn't matter, it's all the same.

Now he's back, saying of Rep. J.C. Watts's defense of Lott that he "would have more credibility had he not allowed himself to be trotted out like a show pony to promote his party's alleged diversity."

Alleged diversity? Excuse me, but what exactly is the difference between diversity and "alleged" diversity? Wait a minute, it's coming to me.... Isn't this the same sort of thing that The Progressive and other lefties said about the "faux inclusiveness" of the last Republican convention and then of President Bush's cabinet? Sure enough, as I discussed here, the apparent diversity at the convention was only "stage managed," explained James Traub in the New York Times Magazine. Well, what did Traub say about Powell and Rice being named to powerful positions in the new administration? That they "have less symbolic value than comparably placed figures in domestic policy would." Real power, apparently, is as nothing compared to symbolic value.

Now I think I get it. Real diversity has to be the result of conscious, race-based preferences and choices, preferably enshrined in law or at least regulatory policy. Diversity that just sort of happens when you're not focused on race, unplanned, in what might be called a free market of race and ethnicity, that's only "apparent" diversity.

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That's right, Clarence Page, the well known syndicated columnist, has joined those promoting the Iniquitous Ubiquitous Non Sequitur.

Stop the presses! I have run across what appear to be several classic examples of unfair preferential treatment in college admissions.

So shocking are they that I hesitate to report them for fear of widespread howling, heart palpitations and fainting spells.

But I feel it is my civic duty. After all, some of these examples happened at the University of Michigan, whose race-conscious admissions the U.S. Supreme Court has decided to review.
[....]
... [A]s important as grades and test scores might be, they never have been the sole factors on which universities base their admissions. The University of Michigan, for example, has 13 preference categories. They include geographic origins, talents, foreign origins, rural origins, family income and children of alumni over 50. Race is one of those categories.

One friend, a Northwestern University professor, quips that he got into Princeton "under affirmative action for Greek kids from Albuquerque." Another friend, a Washington lawyer, says he got into Harvard under "affirmative action for Nebraskans."

And besides, clever Clarence continued, compared to "major boost that affirmative action has given to blacks and Latinos since the 1960s, it has not been a huge inconvenience to very many whites, including the plaintiffs in the Michigan case."

Thus I'm sure Mr. Page wouldn't mind if, say, his son or daughter were denied admission to the University of Michigan because it already had enough blacks from Chicago and needed a few more downstate whites. If he protested, I'm equally sure that he would be mollified if an admissions officer patiently explained, "Well, Mr. Page, we've found that it takes only about 12% blacks in a class to provide all the diversity we need and, frankly, when your [son/daughter] applied we simply didn't need any more blacks. Besides, this isn't racist; we didn't reject all that many blacks on those grounds, and we did reject some Detroit Muslims for the same reason. I hear that Wisconsin and Minnesota has nice universities. Maybe they still need some more blacks."

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This country's commitment to civil rights is "under siege," exclaims Jesse Jackson, and "right-wing zealots are abuzz with hope that the Supreme Court will turn its back on precedent, history and justice and ban affirmative action altogether."

More than 100 years ago, the Supreme Court disgraced itself by ruling that legal apartheid--the lie of separate but equal--was constitutional. Almost 50 years ago, it brought that disgraceful era to an end in Brown vs. Board of Education, ruling school segregation illegal. A generation ago, in 1978, it reaffirmed affirmative action in education in the Bakke decision, even while outlawing quotas. Now the question is whether the court will uphold the commitment to diversity or turn back the clock.

I'm always amused by "turn back the clock" references, whoever makes them, implying as they do that history is linear, that there are never any wrong turns that have to be corrected, etc. It is an especially ironic phrase here since the legal theory underlying the Plessy decision is that equal protection does not require colorblindness and hence that racial discrimination can in many circumstances be reasonable and hence constitutional. The preferentialist argument today is an unwitting echo of Plessy.

The underlying theory of Brown v. Board of Education, on the other hand, at least insofar as it had a theory, is that official classification by race is on its face a violation of equal protection. This theory was given teeth (many of them subsequently pulled by later Court decisions, some of which are now growing back due to more recent Court decisions) by the Civil Rights Act of 1964, Title VI of which, at issue in the Michigan cases along with the 14th Amendment, says "no person" may be discriminated against because of race in any institution receiving federal funds.

If Jackson's legal argument is weak, his policy argument is even weaker. He writes, for example, of "a fundamental distortion about college admissions."

The distortion is the widespread belief that grades and test scores determine admission to college. The plaintiffs feel aggrieved because they allege that minority applicants with lower grades and/or test scores have been admitted to the school and they have been rejected. They have no right to go to the University of Michigan or its law school. But they allege that their right to equal protection under the law has been violated because advantage has been given to minority applicants.

By now regular readers of DISCRIMINATIONS will have guessed what's coming next. Yup, it's the INIQUITOUS UBIQUITOUS NON SEQUITUR:

But the University of Michigan's programs, like most modern programs, do not admit students solely on the basis of grades and test scores. Rather, complex calculations are made to build a student body that is multitalented and multifaceted. Students with alumni parents gain an advantage over those without. Foreign students from around the world get a boost. Athletes with lower grades and scores are routinely admitted. The plaintiffs in this case no doubt had higher test scores and better grades than many students in these categories--but they raise no questions about them.

As I've argued ad nauseam (most recently, here, here, here, and here), plaintiffs raised no questions about preferences to athletes or legacies because we neither have nor need a right not to be discriminated against on those grounds. In short, Jackson is saying, in classic IUNS form, that if discrimination for any reason is acceptable discrimination for all reasons -- even race or religion -- must be acceptable as well. Baloney.

Jackson also says that "minority students who can get into the university surely are deserving." That is no doubt true, but it is hardly the question. The question is whether some of them were admitted instead of even more deserving (by whatever non-racial admissions criteria were in place) applicants because of their race. It is true, of course, that no one has a right to be admitted. The right is not to be excluded because of race.

This leaves, finally, the goal of "diversity." Even if that goal is deemed to be compelling, it does not follow that discriminating on the basis of race is the only, or best, way to achieve it. Selective universities, for example, could reduce or even abandon their selectivity to achieve it, admitting high school or college graduates by lottery. Faced with that choice, I suspect administrations at many selective universities would quickly conclude that diversity isn't so compelling after all. But if it's not compelling enough to abandon selectivity, why is it compelling enough to abandon the right against racial discrimination?

Posted by John Rosenberg at 12:49 PM | Permalink | Say What? (1) | TrackBacks (0)

From today's White House Daily Briefing:

Q: All right. Considering the billions of federal taxpayer dollars that go to support U.S. universities, does the President believe that universities who use affirmative action by race in their admissions should be obliged to use affirmative action by race rather than ability alone in selecting members of their football and basketball teams?

MR. FLEISCHER: I think the best guide to what the President believes on this issue is to look at what he did as the governor of Texas, when the President --

Q: The Hopwood decision came out against --

MR. FLEISCHER: Lester, I was just answering your question.

Q: You remember that, the Hopwood decision, don't you?

MR. FLEISCHER: That's your second question. Yes, I do.

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I hereby gratefully accept Joanne Jacobs' modification of my term,
Ubiquitous Non Sequitur, to the much improved Iniquitous Ubiquitous Non Sequitur. The terms refer to the offensive (iniquitous) all-too-common (ubiquitous) argument that discrimination on the basis of race resides on the same moral and political plane -- and thus should be legally treated the same -- as discrimination on the basis of athletic or musical ability.

Posted by John Rosenberg at 9:32 AM | Permalink | Say What? (2) | TrackBacks (0)

In a post yesterday I complained about the argument (not for the first time; see here and here) that discrimination on the basis of race is no different from discrimination on the basis of athletic or musical ability, geographical background, or anything else. The implication is that anyone who is comfortable with preferences based on these factors has no business being uncomfortable with preferences based on race. As I've said, I find this argument not only wrong but actually offensive, trivializing as it does racial discrimination.

Unfortunately, you can't turn around without hearing this argument. Thus I am hereby giving it a name: Ubiquitous Non Sequitur. Here's a good example, from an editorial today in the Norfolk Virginian-Pilot:

Let us hope that those who would dismantle the ability of colleges to consider race in fashioning a student body will next turn their sights to the back-scratching quotient.

If grades and test scores alone are worth considering, then certainly nobody ought to wind up on a school roster because Daddy Sam gave $1 million to the boosters club or Great Uncle Bob chaired the board of trustees.

If grades and test scores alone are the measure, then forget gender, geography, economic disparity, life experience, extra-curricular activities and creative genius on a college application form as well.

This example has the virtue of containing a non sequitur inside the non sequitur, since barring the consideration of race does not require the consideration only of grades and test scores. Just as allowing discrimination on some grounds (athletic ability, etc.) does legitimize discrimination on all grounds (race, religion), so barring discrimination on some grounds does not bar it on all grounds. You'd think this would be elementary.

The eminent social scientist James Q. Wilson made what should have been the final comment on the UNS (Ubiquitous Non Sequitur, in case you've already forgotten):

we did not fight the Civil War to make sure the University of Mississippi would admit good quarterbacks, we fought it to make certain it would admit blacks. To say that racial and athletic classifications are similar or that one can reason from the latter to the former is foolish. No court has ever held, or is likely to hold, that being able to throw a football 60 yards (or to have a father who gave the school a million dollars) places you in a class whose rights are protected by the barrier of strict scrutiny. Of course, one could argue for making both race and athleticism the same, by getting the Court to say that race is no longer a suspect classification. But that would mean reversing 40 years of desegregation. ["Symposium: Is Affirmative Action on the Way Out? Should It Be?" COMMENTARY, March 1998]

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Two Ubiquitous Affirmative Action Fallacies - I'm tempted to say that if someone can show me a defense of preferential admissions that does not contain these fallacies I'll give him or her an autographed copy of my next book ... or ten cents in coin.

I discussed a typical example just two days ago, here. And now here's another example of the same thing (See what I mean? It's everywhere), from a review in today's New York Times Book Review of The Game of Life: College Sports and Educational Values, by James Shulman and William G. Bowen:

"The Game of Life," by James Shulman, a researcher and administrator at the Andrew W. Mellon Foundation, and William Bowen, president of the foundation and formerly president of Princeton, marshals the evidence that high athletic ability -- the kind that gets high school children onto the wish lists submitted by college coaches to admissions committees -- confers advantage in the admissions scramble. Supporters of affirmative action cogently point out that this sort of "affirmative action" for athletes (as well as for alumni children) has never, at least until now, elicited cries of foul on the ground that it violates meritocratic principles. Somehow that kind of indignation seems to arise only in response to the putative advantages of minority candidates. (Emphasis added)

For some reason, every time this point is made -- and it is made in virtually every defense of racial preferences -- it is always made with a sort of breathless sense of discovery, as though the author had just come up with an unanswerable "gotcha!" that will drive the final nail into the coffin of racist or redneck or Republican (but, from a liberal point of view, I repeat myself) objections to affirmative action.

Here are the two fallacies on which that argument depends:

1. The Merit Fallacy
I'm sorely tempted to call this one The Meretricious Fallacy (Meretricious: "tawrdrily and falsely attractive"; "superficially significant" -- Merriam-Webster Collegiate Online). Anyway, this is an argument that no one who accepts the legitimacy of criteria based on anything other than merit can make a principled criticism of racial preferences. It is a fallacy because it wrongly assumes that the only criticism of racial preferences is that they offend the merit principle. That is not true. They also offend, and more fundamentally, the principle that no person should be rewarded or punished based on race or religion. For example, merit is totally irrelevant to the illegitimacy of an admissions office in a public institution giving preferences to Presbyterians. (And preferences to Jews or Catholics or wiccans would have been equally illegitimate, even if the rationale were to compensate for past discrimination.)

2. The Fallacy of Fungible Discriminations
This is the argument that all discrimination is alike; if you can discriminate for one reason, you can discriminate for any reason. Thus if it's acceptable to give preferences based on athletic or musical ability or the alumni status of parents, it's also legitimate to give preferences based on race or religion. Preferences, in short, are preferences; if one is O.K., all are O.K.

In some respects No. 2 is simply the other side of the coin of No. 1. The Merit Fallacy says that if you accept any exception to merit you have no principled basis to criticize any discrimination, and The Fallacy of Fungible Discriminations says all discriminations are on the same moral plane. But they are not. Because of our history, and the core values that have emerged from it, race and religion are in a special, protected category. We allow, even require, the state to impose benefits and burdens on us based on a whole host of criteria -- but not race or religion, which are or should be off limits to government control. As I wrote two days ago making this same point against the same fallacies, no Constitutional prohibition bars discrimination for or against tight ends or tuba players. That hardly means, as defenders of racial preferences must maintain, that discrimination based on race or religion is also acceptable.

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Race a "Specialized Talent"? - Joanne Jacobs links to an interesting dialog about elite college admissions at The Atlantic Online between James Fallows and Jacques Steinberg, author of The Gatekeepers: Inside the Admissions Process of a Premier College (Viking).

So far there are only two (long) entries, but this is good reading for anyone interested in what goes on behind the closed doors of elite admissions offices. I would, however, like to take issue with Steinberg's one brief comment (so far) about the lower requirements for minorities:

And I would argue that one can't criticize the arguably lower standard against which a minority candidate might be judged (especially one whose parents had not attended college, who would be coded as "NCP," or "non-college parent," in admissions lingo) without also looking at the standards against which other applicants with specialized talents are held.

Actually, one can, and I will. Race is not a "specialized talent." Racial discrimination, i.e., distributing benefits or burdens based on race, is not the same as discriminating on the basis of athletic or musical ability or the alumni status of one's parents. There is no Constitutional prohibition that bars discrimination for or against tight ends or tuba players. All discrimination, in short, is not the same; the fact that preferences for some reasons are acceptable does not mean that preferences for any reason are.

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